Commencement of action in the Magistrate Court (Lagos) and the High Court Flashcards
What is a cause of action
Cause of action is the grievances or wrong that gives a party a legal claim.
Must not be frivolous and there must be prospect of success
What happens where a party does not have locus standi
The court is obliged to strike out his action
What is the limitation period for a simple contract
6 years
What is the limitation period for action against a public officer
3 months
How is jurisdiction conferred on a court
By statute or the constitution
What is the maximum limit for monetary claims in the Magistrate court in Lagos
N10 million
Modes of commencement of action in a magistrate court?
i) By claim
ii) By originating application
In what circumstance is it proper to use an ordinary summons or a summary summons
Ordinary summons is used in contentious actions while Summary summons is used for recovery of debts or liquidated money demands, with or without a claim for interest to which the claimant honestly believes the defendant has no defence to
What is the life span of an ordinary summons
3 months from the date is was issued
How is an action commenced by Claim?
Any action commenced by claim is commenced by the claimant/his solicitor delivering to the Registrar a precipe as in Civil Form 1 of Appendix 1 to the Magistrate Court Rules and filing same together with the particulars of claim
How do you apply for summary summons
By way of Letter to the Registrar
A summary summons shall not be issued in the following cases?
1) Against an infant or a person of unsound mind.
2) To recover money lent by a money lender etc
3) For actions on behalf of an assignee of a debt or other chose in action
4) To recover money secured by a mortgage or charge
5) Against a defendant to be served outside jurisdiction
Where is an action that involves land commenced
The Judicial Division of the State High Court where the land is situate
Where is an action involving contractual disputes commenced?
Where the contract is to be performed
Generally in civil matter not specifically mentioned where is an action commenced?
The Judicial Division of the State High Court where the cause of action arose or where the defendant resides or carries on business
Order 3 Rule 4 ABUJA
Order 2 Rule 4 LAGOS
The 4 modes for the commencement of action in the High court
- Writ of Summons
- Originating Summons
- Originating motions/ application
- Petitions
Where is an action commenced if a company is a party in the suit?
It is commenced in the judicial division where it has its central place of business, management and control
KRAUS THOMPSON V UNICAL
Where is an action commenced where there are several defendants residing or carrying on business in different judicial divisions
Can be commenced where any of the defendants reside.
Order 2 rule 4(2) Lagos; Order 3 Rule 4(2) Abuja
Where is an action commenced for recovery of penalties, forfeiture, actions against public officer
Where the cause of action arose
What happens where commencement of action is filed in the wrong judicial division
Filing at a wrong judicial division does not nullify the suit.
The Chief Justice can decide that the matter should continue in that wrong judicial division unless the defendant enters an objection to the jurisdiction of the court.
When is writ of summons used?
When the matter is contentious in nature. Where a matter is in dispute
Doherty v Doherty (1969)
What documents does a claimant frontload with a writ of summons in Lagos?
a) Statement of claim
b) List of witnesses to be called at the trial
c) Written statement on oath of witnesses
d) Copies of every documents to be relied upon
e) Pre-action protocol form 01
Order 3 rule 2(1) Lagos
What documents does a claimant frontload with a writ of summons in Abuja?
a) Statement of claim
b) List of witnesses
c) Written statement on oath of witnesses
d) Copies of every document to be relied upon
e) Certificate of Pre-action Counselling as in form 6
Order 2 Rule 2 Abuja
What is the consequence of failure to comply with frontloading requirements?
Leads to nullification of the action
ORDER 5 RULE 1 LAGOS
What is the effect of a writ of summons being endorsed/signed by a law firm instead of the lawyer who took out the writ on behalf of the claimant?
It would be such an irregularity which renders the writ as incompetent and void
OKAFOR V NWEKE
Advantages of front-loading documents
1) Ensures that frivolous actions are not filed in court
2) Avoids springing of surprises
3) Help the parties and the judges prepare well for the case
4) Ensures speedy trial and quick dispensation of justice
5) Prepares parties and the judge for case management conference/ pre-trial conference
6) Encourage parties to settle out of court by ADR
7) It saves time and costs
What endorsements must be made on the writ
Every writ of summons should contain the particulars of claim and the reliefs/remedies seeking.
Endorsement of claim must be directly at the back of writ of summons.
When is an action deemed to have commenced?
Where claimant has presented all the documents constituting his originating process to the Registrar including payment of filing fees regardless of when the Registrar issues it.
UBA V MODE NIG LTD (2000)
What is the life span of a writ in Lagos
6 months at first instance; can be renewed for a further 3 months before it expires and another 3 months.
But not longer than 12 months
What days and time is service to be effected
6am - 6pm on juridical days i.e. Monday to Saturday
How is appearance to be entered by a defendant and within how many days in Lagos (writ of summons)?
A defendant enters appearance by completing and filing form 11 (Memorandum of Appearance) with the Court Registry.
And must do this within 42 days of service
How is appearance to be entered by a defendant and within how many days in Abuja (writ of summons)?
A defendant enters appearance by completing and filing form 12 (Memorandum of Appearance) with the Court Registry.
And must do this within 14 days of service
Section 99 of the Sheriff and Civil Process Act says what about service of a writ of summons outside the state from which it was issued
For service of a writ of summons outside of the state, from which it was issued, defendant must have at least 30 days to enter appearance
How many days does a defendant outside of the state have to enter appearance in Lagos? (Writ of Summons)
42 days
How many days does a defendant outside of the state have to enter appearance in Abuja? (Writ of Summons)
30 days
What is a conditional appearance?
Implies that the defendant is entering appearance under protest and intends to challenge the jurisdiction of the court or some other irregularity with the writ
How should a defendant respond if served with a defective writ
- Enter a conditional appearance and without taking any further steps, raise an objection by way of a motion on notice.
- Without entering appearance, file an application by way of MOTION ON NOTICE to set aside the writ.
- Without entering appearance, file an application by way of SUMMONS to set aside the writ.
How long does a defendant have to front load his document in response of service of a writ of summons?
In Lagos, a defendant front loads his documents within 42 days of service of the writ of summons upon him
In Abuja a defendant front loads his documents within 21 days of service of the writ of summons upon him
What documents does a defendant serve on the claimant in response to a service of a writ of summons in Lagos?
a) Statement of defence
b) List of witnesses
c) Written statement on oath of witnesses
d) Copies of every document to be relied upon
What documents does a defendant serve on the claimant in response to a service of a writ of summons in Abuja?
a) Statement of claim
b) List of witnesses
c) Written statement on oath of witnesses
d) Copies of every document to be relied upon
e) Certificate of Pre-action Counselling form 6
What is the life span of an originating process in Abuja
The lifespan of an originating process is 6 months. Renewable for 3 months from the date of such renewal. Court may order two renewals strictly for good cause BUT the process cannot continue for more than 9 months.
Order 6 rule 6 & 7 Abuja
What happens when a defendant fails to enters an appearance within the time limited by the writ?
- Judgement would be granted in favour of the plaintiff (in liquidated money demand and recovery of land
- In an action of declaration of title, Court will not grant default judgement. The case will be set down for hearing and claimant must prove his title first before judgement is granted in his favour
How long can trial in fast track case last?
Not more than 90 days
Within how many days is a judge to deliver judgement in a fast track case
Within 60 days of the completion of trial
How long does the case management conference last under the fast track procedure
30 days
For a suit to qualify for the fast track procedure in Lagos, it must… ?
- Be commenced by a writ of summons
- An application must be made to the Registrar by the claimant or counter-claimant
AND ANY ONE OF THE FOLLOWING:
a) the claim is for liquidated money claim or counterclaim in a sum not less than N100,000,000
b) the claim is involves a mortgage transaction, charges or other securities
c) the claimant suing for liquidated money matter and is non Nigerian or resident in Nigeria and such facts are disclosed in the pleadings.
For a suit to qualify for the fast track procedure in Abuja, it must fall within… ?
a) Banker/ customer disputes and the claim must not fall less than 50 million or
b) Commerce and industry; the claim must not fall less than 50 million or
c) Landlord/ Tenant
d) FCT or Area Council Revenue
e) where any of the parties specifically requests it
What form is request for fast track in Abuja?
Form 32
Commencement and conclusion of fast track trial must be within how many days in Abuja
30 days
Memorandum of appearance and reply to the defence must be filed within how many days in a fast track procedure in Abuja
7 days each
Within how many days is a judge to deliver judgement in a fast track case in Abuja
7 days
When is an originating summons used?
Used to commence issues where the sole or principal question in issue is one of construction or interpretation of any written law or instrument and there unlikely to be facts in substantial dispute or in dispute
Advantages of originating summons
- Faster cause no facts in dispute to cause delays
- No filing of pleadings, interrogatories or discoveries. Based on affidavit evidence.
- The matter will be heard expeditiously
When should a defendant enter appearance in response to a service of an originating summons on him in Lagos?
21 days
When should a defendant enter appearance in response to a service of an originating summons on him in Abuja?
42 days
What is the endorsement made by a Registrar for serving a writ outside of the state it was issue?
“This writ of summons is to be served out of Lagos State of Nigeria and in Abuja, Federal Capital Territory”
What is the procedure for serving a writ outside of the state it was issue?
- The Registrar will make an endorsement at the bottom of the writ stating: “This writ of summons is to be served out of Lagos State of Nigeria and in Abuja, Federal Capital Territory”. S. 97 Sheriffs and Civil Process Act
- Defendant shall enter an appearance in Lagos within 42 days and 30 days in Abuja. S. 99 Sheriffs and Civil Process Act
An originating summons is filled by a claimant/plaintiff with what documents in Lagos?
An affidavit
A written address in support of facts
List of Exhibits to be relied upon
Pre-action protocol form 01
An originating summons is filled by a claimant/plaintiff with what documents in Abuja?
An affidavit
A written address in support of facts
Exhibits to be relied upon
Certificate of pre-action counselling form 6
A defendant is required to file the following documents in response to an originating summons (Lagos)?
Counter affidavit
Written address
Exhibits to be relied upon
A defendant is required to file the following documents in response to an originating summons (Abuja)?
Counter affidavit
Written address
Exhibits to be relied upon
Certificate of pre-action counselling form 6
When is an originating motion used?
Where the rules or any law provides. Used for applying for prerogative orders such as habeas corpus, mandamus, certiorari.
Parties are referred to as applicant and respondent
What is mandamus?
This is a writ compelling a public officer or authority to perform their public or statutory duty
What is habeas corpus?
This is a writ issued to secure the release of a person unlawfully detained
What is Prohibition
This is a writ issued to prohibits proceedings in an inferior court where the inferior court has no jurisdiction to enter such matters
What is Certiorari?
It is a writ used to direct an inferior court to send the record of proceedings for judicial review i.e. it is used to quash the order made by a lower court
What documents are filed with an originating motion
- Affidavit
- Written address
- A brief statement showing:
- The name and particulars of the applicant
- Reliefs sought
- The grounds upon which the reliefs are sought
When is a petition used
For actions where the rules or written law so provides.
It is used in matters for winding up of companies, electoral matters and matrimonial proceedings.
Parties are referred to as petitioner and respondent
What is the maximum limit for monetary claims in the Magistrate court in Abuja
N5 million
What are requirements for claims in a small claims court
- Must be claims for liquidated money demands for N5 million
- Claimant resides or carries out business in Lagos
- Defendant or one of the defendants resides or carries out business in Lagos
- Course of action arose wholly or in part in Lagos
- The claimant must have served on the defendant a letter of demand in form SCA 1. Article 2(1) Practice Directions of the Lagos State Small Claims Court 2018
What is the mode of commencement in a small claims court?
By claim on completion of a small claims complaint form- SCA 2
Once the criteria are satisfied in s2(1), register issues a summons- SCA 3
In Abuja when should a reply to a statement of defence be filed
Within 7 days of service of a statement of defence on the claimant
Within 14 days of service if the defence contains a counter claim
In Lagos when should a reply to a statement of defence be filed
Within 14 days of service of a statement of defence on the claimant
When are pleadings deemed closed in Lagos and Abuja
At the expiration of 14 days after service of a statement of defence
If there is a reply or defence to a counter claim by the claimant, then at the expiration of 7 days after service of the reply
ORDER 15 RULE 19 ABUJA &; LAGOS
